Page:HCF v The Queen.pdf/40

Edelman J Steward J

accommodation which had been provided. The trial judge directed that the jurors were to "stay together". For that purpose, a jury keeper was to accompany each of four taxis used to transport the jurors to and from their accommodation. However, that did not take place with one taxi, which carried the foreman and three other jurors unescorted by a jury keeper. The trial judge was told about what had taken place and a submission was made that he should not "receive" the jury's verdicts of guilty. The judge inquired of the foreman whether the case had been discussed in the taxi; he was told that it had not. On that basis he declined to discharge the jury. On appeal there was held to have been a miscarriage of justice.

The decision in Chaouk was not one that was merely concerned with a lack of apprehended or actual bias or partiality of a particular jury. It was a broader, systemic, concern to ensure the integrity of a jury's verdict in that case that led to the common law rule that upon entering into deliberations there must be no communication, or risk of communication, between outsiders and the jury. In Chaouk that rule had been breached. Kaye J said :

"[I]t was not necessary or relevant to consider whether the irregularity did in fact prejudice the accused. The test for the Court where an irregularity of the nature of a transgression of the common law rule has taken place was stated by Sir John Barry in R v Hodgkinson [1954] VLR 151, at p 156 to be to make up its mind 'whether the incident was of such a character that, if the verdict is allowed to stand, justice would not appear to be done or that the incident was likely to give rise to a reasonable suspicion concerning the fairness of the trial'".

Kaye J concluded that there was a miscarriage of justice, even in the face of the answer given by the foreman to the trial judge. A reasonable bystander might well, his Honour said, have speculated as to what was said in the taxi. As a result, even if there had been no reasonable apprehension of bias or partiality of any member of the jury the infringement was a miscarriage of justice; indeed so serious